Calcutta High Court
Madhu Sudan Dutt And Ors vs Sm. Malabika Dutt And Ors on 17 May, 2023
IN THE HIGH COURT AT CALCUTTA
ORDINARY ORIGINAL CIVIL JURISDICTION
ORIGINAL SIDE
Present:
The Hon'ble Justice Sugato Majumdar
CS/75/1970
MADHU SUDAN DUTT AND ORS.
VS
SM. MALABIKA DUTT AND ORS.
For the Plaintiffs : Mr. Purna Chandra Paul Chowdhury, Advocate,
Mr. Deep Narayan Mukherjee, Advocate,
Mr. Gopal Paul Chowdhury, Advocate.
Hearing concluded on : 16.05.2023
Judgment on : 17.05.2023
Sugato Majumdar, J.:
The instant suit was filed for partition and administration of the estate.
There were five suit properties initially. These properties were:
1.
8B, Nabin Pal Lane, Kolkata;
2. 16, Beniatola Lane, Kolkata;
3. 17, Beniatola Lane, Kolkata;
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4. 26, Sitaram Ghosh Street, Kolkata;
5. 31, College Row, Kolkata.
Preliminary decree of the suit was passed by a Co-Ordinate Bench of this
Court on 8th August, 1994. In terms of the preliminary decree the properties located
at premises no. 26, Sitaram Ghosh Street, Kolkata and 31, College Row, Kolkata were
kept outside the ambit of the present suit. This Court decided that, so for as the other
three properties are concerned, the original Plaintiffs are jointly entitled to 50% of
the share of these properties and the original Defendants are jointly entitled to rest of
the 50% of these properties. An appeal was preferred. On appeal against the said
preliminary decree, the Division Bench remanded the matter for fresh trial in respect
of the properties located at premises no. 26, Sitaram Ghosh Street, Kolkata and 31,
College Row, Kolkata. But the Division Bench upheld the preliminary decree so far
as the properties located at premises no. 8B, Nabin Pal Lane, Kolklata; 16, Beniatola
Lane, Kolkata and 17, Beniatola Lane, Kolkata are concerned. In terms of the said
preliminary decree the Co-Ordinate Bench directed to appoint Partition
Commissioner for partition in respect of the last mentioned three properties.
During pendency, the original Plaintiffs did not proceed with the suit for
which then Defendant No.1, 3, 5 and 6 were transposed as Plaintiffs and other
Defendants were arrayed as Defendant no.2(a), 2(b) and 3.
The suit was heard on remand and preliminary decree was passed in terms
of the judgment dated 24th February, 2023. In terms of the later preliminary decree
dated 24th February, 2023, again this Court decided that the properties located at
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premises no. 26, Sitaram Ghosh Street, Kolkata and 31, College Row, Kolkata are not
joint properties for which these properties should not be subject to partition in the
present suit. These two properties were kept outside the ambit of the present suit.
Partition Commissioner had submitted her report in terms of the previous
preliminary decree dated 8th August, 1994. Since, the said preliminary decree was
not wholly set aside by the Division Bench and upheld the findings in respect of the
other three properties, appointment of the Partition Commissioner as well as
proceeding with partition of the properties located at premises no. 8B, Nabin Pal
Lane, Kolklata; 16, Beniatola Lane, Kolkata and 17, Beniatola Lane, Kolkata by metes
and bounds was not impugned. The Partition Commissioner, after submission of the
report was examined by the Court and the Report of the Partition Commissioner was
marked as Ext.18.
Now this Court passed the final judgement in this suit for partition based
on the Report of the Partition Commissioner, marked as Ext.18, in terms of the
following directions:
1. In the original preliminary decree dated 8th August, 1994 shares of the parties
were declared as:
The Plaintiffs jointly : 50%
The Defendants jointly : 50%
Thereafter the parties were transposed in terms of order(s) of this Court.
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Hence, it is directed that in conformity with the preliminary decree dated 8th
August, 1994, the shares of the parties shall be as follow in respect of properties
located at premises no. 8B, Nabin Pal Lane, Kolklata; 16, Beniatola Lane, Kolkata and
17, Beniatola Lane, Kolkata :
Original Plaintiffs (presently transposed Defendant : 50%
No.4,5,6,7).
Original Defendants (presently the transposed Plaintiffs and : 50%
the transposed Defendants 2(a), 2(b) and 3).
Shares of the parties are more specified as follows, as submitted by the
Learned Counsel Mr. Paul Chowdhury:
No. Parties to the suit Share of Share of Suit Share of suit
suit premises Nos. premises Nos.
premises 16 & 17, 26, Sitaram
No. 8B, Beniatola Ghosh Street &
Nabin Pal Lane, Kolkata 31, College
Lane, - 9 to the Row, Kolkata -
Kolkata - 9 parties 9 to the parties
of the
parties.
1 Madhu Sudan 8.33% 10% 16.66%
Dutt,
2 Ashim Kumar 8.33% 10% 16.66%
Dutt,
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3 Arup Kumar 8.33% 10% 16.66%
Dutt,
4 Sm. Anjali Dawn. 8.33% 16.66%
2(a) Smt. Malabika 4.16 ½ % 5% 8.33%
Dutta,
2(b) Smt. Ananya 4.16 ½ % 5% 8.33%
Dutta,
3 Arun Kumar 8.33% 10% 16.66%
Dutt,
4(a) Sm. Anuradha 4.16 ½ % 4.16 ½ %
Dutta,
4(b) Subhajit Dutta, 4.16 ½ % 4.16 ½ %
44(c) Smt. Sujata Dutta, 4.16 ½ % 4.16 ½ %
4(d) Smt. Ajanta Saha, 4.16 ½ % 4.16 ½ %
5 Anadinath Dutta, 16.66% 16.66%
6 Sumit Kumar 8.33% 8.33%
Dutta,
7 Miss. Barnasree 8.33% 8.33%
Dutta.
Total 100% 100% 100%
(Approx) (Approx) (Approx)
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2. So far as the properties located at premises no. 16 & 17 Beniatola Lane,
Kolkata is concerned, it is stated in the Partition Commissioner's Report that
these two properties are fully tenanted. As a result, these two properties
cannot be partitioned by metes and bounds. Therefore, as suggested in the
Report of the Partition Commissioner, all profits, income, usufructs as well as
the expenses, liabilities and payment of outgoings including the cost of
repairing, renovations, shall be shared and born by the parties in proportions
as mentioned in Para. 1 above.
3. i) So far as the property located at the premises no.8B, Nabin Pal Lane,
Kolkata is concerned, the same shall be partitioned equally in two lots namely
Lot - "A" and Lot - "B", as shown and delineated in the map annexed to the
Report of the Partition Commissioner. The original Plaintiffs (presently
transposed Defendant No.4,5,6,7) shall be entitled to the part and parcel
demarcated as Lot - "B" and the original Defendants (presently the
transposed Plaintiffs and the transposed Defendants 2(a), 2(b) and 3) shall be
entitled to the part and parcel demarcated as Lot - "A".
ii) In order to equalise shares, as suggested in the Report of the Partition
Commissioner, the original Defendants (presently the transposed Plaintiffs
and the transposed Defendants 2(a), 2(b) and 3) shall pay to the original
Plaintiffs (presently transposed Defendant No.4,5,6,7) owelty money of Rs. 28,
031.00p within four months of drawing up the decree, if not paid a priori. In
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case of default in payment the outstanding amount shall carry interest at a
rate of 12% per annum till payment, calculating from the date of the decree.
Recovery shall be made by way of execution of the decree.
iii) The parties shall hand over peaceful and vacant possession all the part of
the portions not allotted to them to the other party to whom that portion is
allotted. To clarify, all the original Plaintiffs shall hand over peaceful and
vacant possession of plot 'A' property to the original Defendants and the
original Defendants shall hand over peaceful and vacant possession of plot 'B'
to the original Plaintiffs. This is to be done within four months from the date
of decree in case of default of which the defaulting party shall be liable to pay
damages at a rate of Rs. 50/- per day till recovery without prejudiced to other
rights and entitlements, recovery of possession may be made by way of
execution of this decree against the defaulting party.
4. The parties shall execute deed of mutual conveyance within a period of four
months from the date of decree.
5. Mr. Jayanta Banerjee has been appointed as a Learned Receiver in respect of
premises No. 16 & 17 Beniatola Lane, Kolkata in terms of Order dated
13.11.1980 passed by this Court. The Learned Receiver has filed statement of
accounts dated 05.04.2023. A bank account is maintained in Punjab National
Bank, High Court Branch being current Account No. 0091050001734. It is
stated in the report that since his appointment as Receiver, rents in respect of
premises no. 16 & 17 Beniatola Lane, Kolkata had been collected and deposited
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in the said account after payment of various outgoings expenses and charges.
Outgoings including outstanding statutory liabilities and electricity charges in
respect of the premises no. 8B, Nabin Pal Lane, Kolkata was also paid out of the
said accounts. Since income and expenses in respect of the premises no. 16 & 17
Beniatola Lane, Kolkata are deposited and paid in this account namely current
account no. 0091050001734 maintained in Punjab National Bank, High Court
Branch and since these two premises could not be made partitioned by metes
and bounds. The authorized persons of the Plaintiff and the Defendants shall
operate this account henceforth and the bank shall record their names
henceforth. The Learned Receiver Mr. Banerjee shall be discharged thereafter.
His outstanding remuneration shall be paid out of the said account, if any. No
payment henceforth shall be paid from this account or no deposit in the said
account shall be made in respect of the premises no. 8B, Nabin Pal Lane,
Kolkata. The parties are at liberty to close the account also. The Learned
Receiver Mr. Banerjee shall finish his tasks, so directed above, within two
months from the date of the decree. In case of failure of the original Plaintiffs.
6. The parties shall apply to the Kolkata Municipal Corporation for mutation
of their names and the authorities of the Kolkata Municipal Corporation shall
act accordingly in substitution of name of the existing Receivers.
7. Mr. Zafar Ahmed was appointed as Receiver in respect of premises no. 26
Sitaram Ghosh Street, Kolkata and 31, College Row, Kolkata in terms of the
preliminary decree dated 24.02.2023 these two properties were kept outside
the ambit of this suit. There is a saving bank account bearing no.
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0091010360287 maintained in Punjab National Bank, High Court Branch. The
said account, on discharge of the Learned Receiver shall be in the name of the
owners of the said premises or their authorized representatives who will
operate the account thereafter or be at liberty to close the bank account. All
the documents of the said account shall be handed over by the Learned
Receiver to the authorised or proper person.The fixed deposit shall be
withdrawn and the withdrawn amount shall be deposited in the savings bank
account number 0091010360287 maintained in Punjab National Bank, High
Court Branch. Any outstanding remuneration of the Learned Receiver shall be
adjusted from the fixed deposit account. All these exercises shall be done
within two months from the date of decree.Thereafter, Mr. Ahmed shall stand
discharged.
The instant suit stands disposed of.
Original exhibits be returned to the parties concerned on furnishing
authenticated copies thereof and on undertaking to furnish the originals as and
when required.
Let the decree be drawn up.
(SUGATO MAJUMDAR, J.)
